Posted
by
Soulskill
on Friday November 02, 2012 @10:50AM
from the system-and-method-for-arranging-0s-and-1s dept.

An anonymous reader writes "We can't get rid of software patents, says Richard Stallman, but we could change how they apply to creating and using software and hardware. In an editorial at Wired, he advocates for a legislative solution to the patent wars that would protect both developers and users. Quoting: 'We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement. This approach has several advantages: —It doesn't require classifying patents or patent applications as "software" or "not software." —It provides developers and users with protection from both existing and potential future computational idea patents. —Patent lawyers can't defeat the intended effect by writing applications differently.'"

As usual, he's right. Cue the morons who ignore him because they don't like him personally.

There was one thing that stuck out at me, though:

Second, the U.S. already has many thousands of computational idea patents, and changing the criteria to prevent issuing more would not get rid of the existing ones. We would have to wait almost 20 years for the problem to be entirely corrected through patent expiration. And legislating the abolition of these existing patents is probably unconstitutional. (Perversely, the Supreme Court has insisted that Congress can extend private privileges at the expense of the publicâ(TM)s rights but that it canâ(TM)t go in the other direction.)

Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted? AFAIK patent exist completely at the pleasure of Congress.

I'm not against it at all, but II really would like to understand how Stallman's proposal would apply to, say, the following example (one I've used before [slashdot.org]):

Suppose we take something like the FM demodulator in a radio. When Edwin Armstrong invented it, back in the stone age of the 1930s, I think we can all agree that (a) it was an "actual physical device," and (b) that it met all the other criteria (novelty, non-obviousness, utility, etc.) needed for a patent. It was implemented with the technology available at the time -- stone knives, bear skins, vacuum tubes (valves), and a transformer.

Skipping over details like the invention of ratio detectors, phase-locked loops, etc., the next change in implementation of FM detectors came when the tubes were replaced with discrete transistors. This required some change in bias methods, impedance levels, etc., but no major redesign. It did save cost, size, and power, though.

The next change was integration. At first, the transformer was still needed for the demodulator, and so it was pinned out of the ICs, which were still analog. This saved cost, size, and power still further.

Later, schemes were found to integrate the function of the transformer, fully integrating the (still analog) demodulator. This saved cost and size still further.

Still later, improvements in integration processes enabled the function of the FM demodulator to be performed digitally, using an analog-to-digital converter (ADC) and a bunch of hard-wired logic gates, emulating the mathematical function performed by the analog demodulator. This saved cost, size, and power still further.

Demodulator designs were next ported into programmable hardware dedicated to signal-processing applications (digital signal processors); this required the ADC, plus the algorithm converted to the DSP's assembly language. This saved cost and size.

After that, demodulator designs were moved into hardware register-transfer languages, like Verilog, providing portability from chip to chip using standard-cell logic families. This saved cost.

Later, the Verilog designs were ported into field-programmable gate arrays (FPGAs), enabling one to program the hardware in the chip to become, when preceded by the ADC, an FM demodulator. This saved cost.

Finally, technology improved to the point that the FM demodulator could be made by an ADC followed by a microcomputer, programmed with software in a high-level language as part of a much larger system. This saved cost.

At what point in this development do we draw the line and say, "Below this, it's not patentable (or patent infringement)?" Where is "software"?

The things you cannot patent, universally accepted:Physical Phenomenon, Natural Law, Abstract Ideas and out of these we also have Mathematical Algorithms. Certainly Software can be proven to not qualify for patent-ability, http://abstractionphysics.net/ [abstractionphysics.net] or add dot net to it for the reality of which the fictional trilogy "the matrix" characters were representations of. In other words, we all use the fundamental actions of which software must make use of in playing back what amounts to nothing more than the physical phenomenon of the natural laws of our creation and use of abstract ideas, which include the well defined abstractions of mathematics. All done on a machine that processes abstraction.

Why has this not come to light? Nature likes 3, as in three primary colors of paint or light, etc. from which you can create all other colors of that media. Software has three user interfaces. The CLI, GUI and the side door port to automating software use, including its creation. However this third user interface is kept from the general user, limiting what the general user can do. For the user to have such access is in analogy like giving users a decimal calculator when the accountants are using roman numerals. A great deal of what software patents cover today would become non-novel and invalid.

Bill Gates said the way to become wealthy is to make people need you. He was also the one to coin the term "software piracy"

Anyone got a citation for this, that Congress does not have the power to limit patents which already have been granted? AFAIK patent exist completely at the pleasure of Congress.

Patents have been held to be property, and are therefore subject to due process rights against seizure by the government (there are also arguments about them being a legal entitlement). While Congress could abolish the patent act tomorrow, they probably couldn't make it retroactive or take away existing patents.

This would be true if there was limitless work for lawyers, and they could simply choose the most lucrative work. But that's not the case—lawyers, like contractors in any industry whose opportunities are affected by the laws the government writes, have a vested interest in supporting laws that increase demand for their work. Diamond v. Diehr could as easily have been called the Legal Profession Full Employment Act of 1981.

It's not "his way or the highway" it's his way, or he disagrees with you. He doesn't say "you can't", he says "I don't, and you shouldn't"

You're free to go and use other software if you don't like GNU licenses. The authors of the projects decide how to license their software.

Philosophy is just that... you can't always follow it in practice. I like Richard Stallman's philosophy and I think I'd like the man if I met him, but if I followed his ideals I wouldn't have much. I want more than a Yeelong netbook (open hardware and software) and I still need a Windows install for my games, for example. Even in my Linux setup that I use for everything else, I still want to be able to play music and movies which happen to be in non-free file formats so I turn a blind eye and use things like MPlayer with non-free codecs. I use the Flash player too.

It's one of those things that prove to me the "strict constitutionalists" are full of it. They're for strong IP law most of the time, but the constitutional purpose of copyright and patents was explicitly limited and was explicitly not put in place to make companies rich but to encourage inventors and artists by letting them profit off of their work for a *limited* amount of time.

I consider myself a strict constitutionalist (or a "textualist" if you want to nitpick). I am in favor of strong IP (and I ought to be---I'm an IP lawyer). In fact, the patent system has stayed pretty true to its constitutional footings. I have plenty of policy complaints about some of the details, but overall it does exactly what it's supposed to: grant a strong, limited-time monopoly to inventors.

Copyrights, on the other hand, are totally out of control. Life of the author +70 years is both too long and (in my opinion) too indefinite to meet the Constitution's "limited times" requirement. And if we're being realistic, there's no way Walt Disney is ever going to let Mickey Mouse go out of copyright. They want a perpetual term, and they will pay whomever they need to pay to make it happen. And revoking works from the public domain? Seriously? And DMCA? And I could go on. Copyright has been tainted by the worst excesses of the lobbying culture.

(These views, of course, are simply my own. If I represent a client whose interests lie in defending the existing copyright regime, I will stand up and extoll the virtues of the existing regime. Now cue the trolling about how unethical it is to advocate for my clients' interests instead of standing up and talking about my personal preferences...)